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State v. Balogh

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 21, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEPHEN BALOGH, JR., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-02-0220.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2008

Before Judges Parrillo, Lihotz and Messano.

Defendant Stephen Balogh Jr. appeals from the judgment of conviction that followed a jury trial at which he was found guilty of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1)(count one), and fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(3)(count five), and acquitted of the remaining counts of the indictment. At sentencing, the trial judge imposed concurrent five-year probationary terms with a specific condition that defendant serve 364 days in the county jail, as well as the appropriate fines and penalties.

Defendant raises the following points for our consideration:

POINT I

THE DEFENDANT'S RIGHT[S] TO CONFRONTATION . . . AND . . . TO DUE PROCESS OF LAW . . . WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS AND OTHER EVIDENCE FROM AN ABSENTEE WITNESS. (NOT RAISED BELOW)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO COMPEL THE PRODUCTION OF A KEY DEFENSE WITNESS NOTWITHSTANDING THE FACT THAT THE WITNESS WAS ISSUED A PROPER SUBPOENA AND DID NOT APPEAR.

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . AND THE RIGHT TO PRESENT A DEFENSE . . . WAS VIOLATED BY THE TRIAL COURT'S IMPROPER INTERFERENCE WITH DEFENSE TACTICS AND STRATEGY.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE SUPPRESSION OF EXCULPATORY EVIDENCE DURING THE STATE'S PRESENTATION BEFORE THE GRAND JURY.

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE IMPROPER ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE. (NOT RAISED BELOW)

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE IMPROPER CLAWANS INSTRUCTION TO THE JURY, ALLOWING THE JURORS TO EXCUSE THE NON-PRODUCTION OF A WITNESS EVEN THOUGH THE WITNESS OBSTRUCTED JUSTICE BY IGNORING A PROPERLY ISSUED SUBPOENA. (NOT RAISED BELOW)

POINT VII

THE USE OF EVIDENCE OF THE DEFENDANT'S SILENCE AT OR NEAR THE TIME OF HIS ARREST TO PROVE HIS GUILT VIOLATES THE NEW JERSEY COMMON LAW. (NOT RAISED BELOW)

POINT VIII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE PROSECUTOR'S MISCONDUCT, THREATENING JURORS WITH HIGHER TAXES IF THEY REQUIRE THE STATE TO PRODUCE FORENSIC EVIDENCE. (NOT RAISED BELOW)

POINT IX

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE STATE'S IMPROPER RELIANCE ON EXPERT OPINIONS WITHOUT A PROPER FOUNDATION. (NOT RAISED BELOW)

POINT X

THE TRIAL COURT'S INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION WAS ERRONEOUS AND CONTRADICTORY, AND THE PROSECUTOR REINFORCED AND COMPOUNDED THE ERROR IN HER COMMENTS TO THE JURORS. (NOT RAISED BELOW)

POINT XI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE FAILURE OF THE STATE TO SHOW AN UNINTERRUPTED CHAIN OF CUSTODY.

POINT XII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (PARTIALLY RAISED BELOW)

We have considered these arguments in light of the trial record and applicable legal standards. We affirm.

I.

Detective Brian Mieczkowski of the Edison police department testified that on the night of November 26, 2004, he was on patrol with his partner Jason Vickery in a marked police vehicle. As they passed a 7-Eleven store on Route 27, they observed "an older model Ford Bronco" with "an individual" "[i]n the driver's seat" "slumped over toward the bench seat of the vehicle." Vickery parked the patrol car behind the Bronco and approached the passenger side of the truck as Mieczkowski approached the driver's side. Mieczkowski could not tell if the person in the truck was sick or simply sleeping. However, when he looked through the truck window to the other side, he saw a worried expression on Vickery's face. Mieczkowski then heard Vickery yell something before opening the passenger door of the truck and leaning into it.

In response to his partner's actions, Mieczkowski immediately opened the driver's side door of the Bronco and observed defendant turning away from Vickery, who was trying to grab something from defendant. Mieczkowski saw what appeared to be crack cocaine and either a "scratch-off" lottery ticket or something silver in defendant's hand. Defendant attempted to punch the officer and swallow the suspected cocaine. Mieczkowski and defendant began to struggle and both landed on the parking lot surface with defendant on top of the officer.

Vickery came to Mieczkowski's assistance and the struggle continued as Mieczkowski radioed for backup. The officers were able to handcuff defendant's right hand but not his left until they received assistance from additional police officers who responded to the radio call. Mieczkowski testified that after the struggle was over, the officers asked defendant if he had swallowed the drugs, but he indicated that he had not. In defendant's pocket, the officers found a utility knife; in defendant's wallet, they found a lottery ticket that had a white, powdery residue on it that the officers suspected was cocaine; and, inside the Bronco, the officers found a make-shift pipe made out of a small bottle of alcohol and tin foil with small holes in it. Vickery also found two bags of what appeared to be crack cocaine, one outside the Bronco near the front wheel on the driver's side, the other inside the truck, and he showed them to Mieczkowski before securing them for evidence. Emergency medical technicians (EMTs) were called to the scene because the officers feared that defendant had swallowed some of the drugs.

Roger Schiffman, the assistant captain of the EMTs dispatched to the 7-Eleven parking lot, testified that defendant had some blood on his face and first aid was administered to him. Defendant was unresponsive to the EMT technicians' questions, but based on their assessment, they did not transport defendant to the hospital because his injuries were not life-threatening. Police officer Scott Sofield, however, testified that he eventually transported defendant to Robert Wood Johnson Hospital in New Brunswick to be "physically checked out."

Christopher Glynn, a registered nurse employed at the hospital, testified that he attended to defendant in the emergency room at about 10:40 p.m. Defendant complained of facial injuries. When Glynn asked defendant if he had ingested any drugs, defendant said no, claiming that he threw the drugs before the police got to him. Dr. Guillermo Garcia treated defendant at the hospital and testified that defendant told him that he was punched in the face after "attacking one of the arresting officers." Thomas Lozinski, an employee of the New Jersey State Police Office of Forensic Sciences, testified that he tested one of the small bags seized at the scene and the lottery ticket found in defendant's wallet. Both items tested positive for cocaine.

Defendant testified on his own behalf. He claimed that on the night in question, he drove to the 7-Eleven, bought a lottery ticket, returned to his vehicle, and was smoking a cigarette. As he was about to inspect his lottery ticket, the passenger door of the vehicle was opened by a police officer who lunged at defendant and grabbed him. Another police officer opened the driver's side door of the vehicle and pulled defendant out onto the parking lot. Defendant testified that he defended himself from the blows of the officers by covering his face with his right arm while his left arm was cuffed behind his back. He claimed he had no drugs with him, he did not swallow or discard any drugs, and he denied making any statements to the contrary.

After a charge conference, which we discuss in greater detail below, and following summations and jury instructions, the jury deliberated and found defendant guilty of the two charges we referenced above. He was acquitted of resisting arrest, N.J.S.A. 2C:29-2a(3)(count two); the aggravated assaults of Vickery and Mieczkowski, N.J.S.A. 2C:12-1b(5)(counts three and four); and, the unlawful possession of a weapon, the utility knife, N.J.S.A. 2C:39-5d(count six).

II.

The issues raised by defendant in Points I through VI involve officer Vickery, who was the State's sole witness before the grand jury but did not testify at trial. Specifically citing Vickery's testimony before the grand jury, defendant moved pre-trial to dismiss the indictment based upon prosecutorial misconduct.

Before the panel, Vickery testified that when he approached defendant's vehicle, he observed "a couple of baggies . . . I don't know how many because they were bunched up--but they were plastic baggies . . . each containing . . . a little whitish powder . . . consistent with what I know as cocaine." Vickery testified that he thought defendant was going to swallow the drugs. A grand juror posed a question to Vickery, and he responded as follows:

Q: Did he eventually swallow the stuff he placed in his mouth?

A: He was taken to the hospital and I don't know what tests they ran on him there to determine if he had . . . . [H]e could've; he might not have; I don't know.

However, Vickery's own police report indicated that defendant was "screened for possible drug consumption with negative results." Also, the report of the CAT scan performed on defendant at the hospital, which was in the State's possession, failed to reveal any unusual items in his digestive tract. Defendant argued that Vickery's answers, coupled with the prosecutor's failure to advise the grand jurors of the contents of Vickery's report and the medical reports, amounted to misconduct that required dismissal of the indictment.

The judge, however, concluded that the evidence may have demonstrated an "inconsistency," but that the issue of whether defendant had actually swallowed the drugs was "tangential" to the charges in the indictment. He found no prosecutorial misconduct and denied defendant's motion to dismiss.

At trial, the absence of Vickery as a witness first arose during Mieczkowski's testimony. On direct examination, the following exchange took place between the prosecutor and Mieczkowski without objection:

Q: Do you know if Officer Vickery is on active duty with the Edison Police Department?

A: No, he's not, not currently.

Q: Do you know why he's not?

A: A personal family matter.

Q: Do you know how long he's been out?

A: . . . I believe he took a leave in September of 2005.*fn1

Q: Have you spoken with him since then?

A: Yes.

He was involved in a pretty traumatic event with his family and obviously it had (sic) some changes to him.

On re-direct, and over defendant's objection, Mieczkowski noted that he had not spoken about the case with Vickery who was on leave because his two-month old son had died.

After the State rested, defendant moved for a judgment of acquittal. During colloquy on the motion, and apparently aware that defendant intended to call Vickery as a witness, the judge inquired whether defendant's investigator had actually served Vickery with a subpoena to testify. Defense counsel answered affirmatively and told the judge that a sergeant at the police department had advised that Vickery was "on administrative leave" and "not expected to be back."

After some further discussion, the judge made the following remarks to defense counsel:

Here's the thing. The burden is on you . . . . [I]f you think that he is an essential witness I don't know what he's going to testify that's going to help your client. I mean I would think if Vickery is going to testify it would maybe hurt your client.

The other alternative if he's not, if you don't want to go that route you can ask for a Clawans*fn2 charge . . . that [] should be permitted unless the Court finds the testimony will be cumulative, unimportant or inferior to that which has been already utilized. I can't go out and start searching for [] Vickery, you know.

When trial commenced the next day, the judge formally denied defendant's motion for acquittal, and then stated

The other thing as to Vickery and I'm not going to decide it now but I'm going to entertain whether [defense counsel] can comment on Vickery not being called by the State and an instruction given to the jury . . . that an inference can be made . . . . Vickery is a police officer and there's been no adequate explanation given as to why he has not been called except that he lost his child. I'm not sure when that was. I know it's several months or more ago and the police said they would take the subpoena and he has not appeared.

Defense counsel advised the judge that he had spoken to a police lieutenant that morning to "encourage Vickery to come today." He noted, "We subpoenaed him properly. We did everything."

The judge acknowledged defendant had "done everything [he could] to get [Vickery] here. He's not here. There's no way we're going to be able to get him here." Defense counsel then requested that the judge issue an arrest warrant for Vickery pursuant to Rule 3:26-3. The judge entertained the request and directed defense counsel to prepare a warrant. He also noted, however, the lateness of the request, being made after the State's case had ended and during the defense case. The prosecutor confirmed that the State had informed defense counsel, well in advance of trial, that it did not intend to call Vickery as a witness. The following exchange took place between the judge and defense counsel:

Judge: I'm saying in lieu of doing this that I'm entertaining a Clawans charge where you can comment to the jury in your summation that Vickery isn't here. Why isn't he here? He could have answered this, this, this, this. And it would be a charge given by the Court that an inference can be drawn as to why he's not here.

Counsel: Judge, I don't disagree with that at all but I have to do what [defendant] wants me to do.

Judge: You don't have to do what [defendant] wants you to do. Maybe in certain things you do. You're the attorney. You're in charge of the case. You know that.

In other cases I know Vickery has not shown up so it's going to be very hard to get Vickery here. I think . . . a Clawans charge is as good as not having Vickery here. What is your client saying Vickery is going to say that's going to help him? Tell me what he's going to say?

Counsel: He says [W]ith regard to certain facts he wrote a police report . . . . He is the only one who wrote a lengthy police report, testified to the Grand Jury and also like the others testified to Lieutenant Bryan in an interview and he says different things on different occasions.*fn3

What followed was an exhaustive discussion of differences between Vickery's various statements--his police report, his grand jury testimony, and his statements to Bryan. In the end, the judge told defense counsel, "If you want the arrest warrant I'll sign the arrest warrant." After some further discussion the judge re-iterated, "I believe there is clear and convincing evidence that [Vickery] would not be available unless arrested and so if you want to do that that's fine with me." However, he also urged defense counsel to think about the "other alternative [] the Clawans charge with the inference."

The record does not reveal any further discussion of the issue until after the defense rested. At the charge conference, the judge asked the attorneys, "Any resolution about what we're going to tell the jury about Vickery?" The prosecutor objected to any charge, noting Vickery "was never personally served," and further noting he "[wa]s a witness like any other witness." The judge noted, however, that Vickery was not personally served "because there was no address available to the defense . . . and his employer said they would accept service for him."*fn4

The prosecutor then argued that Vickery was equally unavailable to the State and that he did not possess "such superior knowledge" of the events as to require his production as a witness. Lastly, the prosecutor argued that if the judge was going to give a Clawans charge, he should tell the jury that it could consider the reason for Vickery's non-appearance, i.e., his family problems, and that she should be permitted to comment on the reason for his absence during her summation.

The judge rejected the prosecutor's substantive request to refrain from giving the Clawans charge, but agreed to allow her to reiterate Mieczkowski's testimony regarding Vickery's personal problems. He also agreed to give defense counsel "wide latitude" in commenting on Vickery's absence. All the parties then reviewed a printed, proposed charge on the issue, and both the prosecutor and defense counsel agreed it was acceptable. In summation, both attorneys commented on Vickery's absence; defense counsel urged the jury to consider the anticipated charge from the judge, and the prosecutor reminded the jury of Mieczkowski's testimony explaining why Vickery was not at trial.

During his charge, the judge told the jury the following:

Now, reference has been made to Officer Jason Vickery and that the State has failed to call him to testify. The rule is that where a party fails to produce a witness that party naturally would be expected to call to testify[,] you have a right to infer that had that witness been produced he would have testified adversely to the interest of that party, that is, the State. The reason for this rule is that where you would normally expect a party to call a person as a witness and that party without reasonable explanation fails to do so--now there is an explanation given by the prosecutor as to why Vickery is not here--it leaves a natural inference that the non[-]producing party fears exposure of facts which will be unfavorable to her.

With the exception of the highlighted language, this was a verbatim rendition of Model Jury Charges (Criminal) Witness--Failure of a Party to Produce.*fn5 There was no objection to the charge by defense counsel.

Defendant moved before sentencing for a new trial arguing, among other things, that the verdict was against the weight of the evidence and his inability to cross-examine Vickery was critical and prejudicial. The judge reviewed the trial testimony, noted that he gave an adverse inference charge regarding Vickery over "the objection of the State," and denied the motion for a new trial.

A.

In Point IV, defendant contends that his motion to dismiss the indictment should have been granted because of prosecutorial misconduct before the grand jury. In particular, defendant argues that Vickery's testimony was misleading because it suggested defendant may have ingested some cocaine, rather than allowing the police to seize it, and that this inference remained uncorrected by the prosecutor who had knowledge that medical tests performed on defendant revealed it was unlikely that he had ingested cocaine on the night in question.

Defendant suggests that the prosecutor should have informed the grand jurors of the CAT scan results and corrected Vickery's equivocal testimony by referring the officer to his report or otherwise disclosing its contents to the panel. In either case, we understand the argument to be centered on defendant's belief that the prosecutor was duty-bound to present this "exculpatory evidence."

In State v. Hogan, 144 N.J. 216 (1996), the Supreme Court defined the prosecutor's obligation to present potentially exculpatory evidence to a grand jury. In Hogan, the Court "impos[ed] a limited duty on prosecutors, a duty that is triggered only in the rare case in which the prosecutor is informed of evidence that both directly negates the guilt of the accused and is clearly exculpatory." Id. at 237 (emphasis added). Evidence does not negate the guilt of the accused, Hogan's first prong, "unless [it] squarely refutes an element of the crime in question[.]" Ibid. If it does not, then "that evidence is not within the prosecutorial duty . . . set forth" by the Court. Ibid.

The trial judge noted any evidence as to whether defendant swallowed some of the cocaine was "tangential" to the crimes actually charged. We agree, because assuming arguendo the withheld evidence implied defendant had not swallowed any drugs, it failed to refute any element of the crime for which defendant was actually charged, i.e., possession of cocaine.

Instead, introduction of the police and CAT scan reports may have affected the credibility of a witness before the grand jury, i.e., Vickery. Such evidence, however, also fails to meet the second prong of Hogan's test because it is not clearly exculpatory. See id. at 239-40 (noting evidence affecting witness credibility is not "clearly exculpatory" evidence requiring disclosure before the grand jury). We find no error, therefore, in the denial of defendant's pre-trial motion to dismiss the indictment.

B.

In Points I and V, defendant argues the actual testimony adduced from Mieczkowski as to 1) Vickery's actions on the night in question and 2) Vickery's personal family problems was improper, highly prejudicial, and requires reversal. Since no objection was made at trial, we must determine whether admitting the testimony was plain error. R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971)(noting the error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached").*fn6

Defendant first argues that his right to confrontation was violated because Mieczkowski was permitted to testify about the observations he made of Vickery, and the fact that Vickery yelled something to him, prior to both officers opening the vehicle doors and seizing defendant. Defendant contends this testimony was tantamount to having Vickery's thoughts and actions produced as evidence without producing him as a witness.

We find no merit to this contention. The import of the testimony was not what Vickery saw, said, or did, but rather what it caused Mieczkowski to do. Since defendant was fully able to cross-examine Mieczkowski about his observations of Vickery's conduct and the fact that his partner shouted something to him--Mieczkowski could not even recall what it was-his ability to confront the witness against him was not curtailed in the least.

Defendant argues the admission of Mieczkowski's testimony regarding Vickery's personal family problems was error because its purpose was to excuse Vickery's absence and to allow the State to escape the consequence of the adverse inference charge. We agree that the testimony was not particularly relevant to the issues at hand, and probably should not have been introduced before the jury. We discuss in greater detail below the relationship between this testimony and the other issues raised. Standing alone, however, its admission surely did not bring about an unjust result and was not plain error.

C.

In Points II, III, and VI, defendant challenges the manner in which the trial judge handled the non-appearance of Vickery as a witness. He contends that the judge's failure to compel the officer's appearance violated his due process rights; that the judge's "interference with defense tactics and strategy" violated his due process rights and his "right to present a defense"; and that the Clawans instruction the judge gave was flawed and permitted the jurors to "excuse" Vickery's failure to appear.

We find no merit to the first two arguments defendant raises in this regard. As we have set forth in great detail above, the judge did not refuse defendant's request to compel Vickery's appearance. In fact, he repeatedly indicated that he would issue an arrest warrant. Ultimately, defendant chose an alternative to having the officer arrested.

We also do not think that the judge interfered in defense counsel's strategic and tactical decisions regarding Vickery's non-appearance by suggesting he issue a Clawans charge. Defense counsel acknowledged that the purpose in calling Vickery in the first instance was to essentially cross-examine him regarding inconsistencies in his various versions of the events. We assume in some respect, too, that Vickery's testimony may have been inconsistent with some of Mieczkowski's. We are hard-pressed, however, to see how this would have been more helpful to the defense. If actually presented as a witness, Vickery would have been able to explain away any apparent inconsistencies, and, more importantly, his testimony would have in large part corroborated that of his partner. In short, we do not think the judge in any way overbore the decision-making process defense counsel engaged in, and the record is void of any such contention having actually been made by the attorney.

That leaves defendant's contention that the actual charge as given was fatally flawed. We begin by noting that State v. Clawans, 38 N.J. 162, 171 (1962), provides that "an adverse inference may be drawn against a party from the failure to produce a witness if (1) that party had the power to produce the witness, and (2) the witness' testimony would have been superior to that of the witnesses who did actually testify." State v. LaBrutto, 114 N.J. 187, 202-03 (1989). "A witness is within the power of the party to produce when that party has superior knowledge of the existence or 'identity of a witness or of what testimony might be expected or where a certain relationship, such as employer-employee, exists . . . .'" State v. Wilson, 128 N.J. 233, 244 (1992)(quoting State v. Carter, 91 N.J. 86, 127-28 (1982)). However, we recently noted "the need for trial courts to exercise caution in authorizing the inference." Velasquez, supra, 391 N.J. Super. at 306. "[W]hen it is more reasonable to infer that the litigant's decision to do without the testimony is explained by factors other than the litigant's fear of its content, the inference is not properly drawn." Ibid.

Here, the trial judge determined that Vickery was indeed more available to the State and we have no quarrel with this determination. However, it is highly doubtful that the State's decision to not call Vickery was motivated by its apprehension regarding the possible adverse nature of his testimony. In fact, they had utilized him as the only witness before the grand jury, he had written the incident report in the case, and he was likely to supply the jury with the observations he actually made before opening defendant's car door. Weighed against the effect defendant's cross-examination may have had, we doubt that the reason he was not produced was because of inconsistencies in his various reports and the State's fear that these would be exposed on cross-examination. The explanation for the State's failure to call Vickery was explicitly provided by the prosecutor, and it had nothing to do with the likelihood that his testimony would hurt the State's case.

If we were asked to judge the propriety of giving a Clawans charge in this case in a vacuum, we might conclude it was unwarranted. However, since the judge held this out as a possible alternative to Vickery's arrest, and defendant made a choice based upon that offer, we move on to consider whether the charge, which was not objected to by defendant, amounted to plain error.

"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assesed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory[,]" Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the affect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised [ ] was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).

Our model jury charge recognizes the adverse inference charge may be appropriately given in a criminal case in two different scenarios. When "there is an issue of fact as to one or more of the criteria" supporting an adverse inference, the first part of the model charge, designated as subsection (A), is used. There, jurors are instructed that they should not draw an adverse inference against the non-producing party under certain circumstances, one of which, for example, is "[i]f there has been a satisfactory explanation for . . . non-production" of the witness. Ultimately, in subsection (A) the judge tells the jury, "Whether or not an adverse inference should be drawn is for your determination based upon the principles I have just set forth."

However, in subsection (B) of the model charge, which is to be used "when [the] court has determined that the adverse inference may be drawn," the jury is not instructed that it must consider the disputed facts surrounding the various criteria before it may utilize an adverse inference. Because in utilizing subsection (B) the judge has already determined the criteria permitting the inference exist, the jury's attention need not be directed to any factual disputes.

Here, the record reflects that subsection (B) was submitted to the judge during the charge conference, and both the prosecutor and defense counsel agreed it was appropriate. However, when he actually delivered the charge to the jury, the judge inserted the additional language--"now there is an explanation given by the prosecutor as to why Vickery is not here"--without any further explanation of how this was important to the jury's consideration. More importantly, the explanation for Vickery's failure to appear, despite having been subpoenaed, was insufficient to raise a factual dispute as to whether the adverse inference could or could not be drawn. In other words, having determined that defendant was entitled to an adverse inference charge as a matter of law, it was improper for the judge to have drawn the jury's attention to some explanation offered by the State. No doubt because he had already ruled the prosecutor could comment in summation on the issue, the judge thought it was necessary; however, in doing so, he created confusion.

Despite this error, however, we cannot conclude that it brought about an unjust result. First, the balance of the charge clearly conveyed to the jury that it could "infer that had [Vickery] been produced he would have testified adversely to the interest of that party, that is, the State." Second, defense counsel did not object to the charge, thus indicating that on balance he did not find the instruction to be prejudicial, particularly when taken as a whole. Third, defense counsel was able to comment extensively on the State's failure to produce Vickery as a witness. Fourth, the jury acquitted defendant of four of the six charges he faced, including those counts charging him with assault on the officers, and it found defendant guilty of two charges for which there was substantial evidence. In short, we cannot conclude that the charge as given amounted to plain error requiring reversal.

III.

We find the balance of defendant's arguments to be of insufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We add only these brief comments.

In Points VII, VIII, and IX, defendant argues that during summation, the prosecutor made egregious comments, unsupported by the evidence, amounting to prosecutorial misconduct that requires our reversal. First, in describing defendant's unresponsiveness to the EMT technicians, the prosecutor asked the jurors, if defendant "was that unresponsive with them, how was he with the police?" The second comment was in direct response to defense counsel's suggestion in summation that the physical evidence in the case was not subjected to DNA or fingerprint analysis. During summation, the prosecutor told the jury, "the bags were on the ground. The lottery ticket was in his wallet. So what's the purpose of spending extra dollars of the State's resources to send something down to a different lab to have an analysis of some saliva to match it to the defendant?" The third involves the prosecutor's explanation for why no cocaine residue was found inside defendant's vehicle, despite testimony that defendant had some in his hand or on the lottery ticket when the police first seized him. In short, she told the jurors that the "likelihood of finding . . . granules of cocaine is slim to none."

Defendant argues the first comment infringed on his post-arrest right to remain silent; the second was an impermissible appeal to the jury's fiscal conservativism; and the third stated an opinion that required expert testimony which the State failed to produce. Since none of the comments raised an objection, they must be judged by the plain error standard. R. 2:10-2.

"[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). They are therefore allowed "considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Ibid. As long as the comments do not misstate the evidence, prosecutors are permitted to rebut the specific arguments made by defense counsel. State v. Mahoney, 188 N.J. 359, 376-77 (2006). Additionally, defense counsel's "failure to object suggests that [he] did not believe the remarks were prejudicial at the time they were made," and that failure "deprives the court of an opportunity to take curative action." Frost, supra, 158 N.J. at 84.

Here, the prosecutor's comment regarding defendant's conduct toward the EMTs had nothing do with the exercise of his right to remain silent at arrest. Rather, she sought to liken defendant's uncooperative nature toward the EMTs, even as they tried to assist him, to his uncooperative nature toward the police, as they tried to arrest him. Her comment regarding the State's decision not to forensically test the evidence urged the jury to consider an alternative conclusion than that specifically urged by defense counsel--that such tests were unnecessary under the facts of the case. Lastly, urging the jurors to use their common sense as lay people and consider whether the recovery of cocaine residue in the car was likely, given the struggle that ensued between defendant and the officers, was not improper. The comments, singly or collectively, do not amount to prosecutorial misconduct and certainly do not present plain error.

In Point X, defendant challenges the judge's jury charge on "constructive possession," claiming it was "erroneous and contradictory" and that the error was "compounded" by the prosecutor's comments in summation. Neither the charge, nor the prosecutor's comments were objected to by defense counsel.

In her opening statement, the prosecutor told the jury, "[i]f you possess an object constructively you know what the nature [] of the object is . . . and you can exercise dominion and control over it." As part of his charge, the judge told the jury that constructive possession means the possessor of an item is "able to exercise intentional control or dominion over it." Defendant asserts that constructive possession requires intentional control of an item rather than the ability to exercise intentional control over an item.

The judge's charge tracked the model criminal jury charge on constructive possession verbatim. Earlier in the charge, the judge told the jury, "A person may possess an item even though it was not physically on his person at the time of the arrest if he had in fact at sometime prior to his arrest had control and dominion over it." Immediately following the comment defendant references, the judge told the jury, "Someone who has knowledge of the character of an item and knowingly has both the power and intention at a given time to exercise control over it either directly or through another person or persons is then in constructive possession of the item."

"A person constructively possesses an object when, although he lacks 'physical or manual control,' the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Spivey, 179 N.J. 229, 236-37 (2004)(quoting State v. Schmidt, 110 N.J. 258, 270 (1988). When viewed in its entirety, Chapland, supra, 187 N.J. at 289, the model criminal jury charge, as read by the trial judge, accurately instructed the jury on the necessary elements of the crime, and we find no error.

The comments the prosecutor made in her opening statement cannot rise to the level of plain error. Several days of trial testimony followed those remarks, as did the judge's final instructions, and we are confident that the fleeting comment did not bring about an unjust result.

In Point XI, defendant argues that because Vickery seized the evidence at the scene of defendant's arrest but did not testify at trial, the State failed to establish an uninterrupted chain of custody. However, Mieczkowski testified that Vickery showed him the evidence upon seizing it, together they transported it to the police department, gave it to the station commander who logged it in before it was picked up by an evidence officer. The State actually produced a police witness who identified the receipt of the evidence in the police station, as well as its transfer to the State Police laboratory for analysis.

The chain of custody is sufficiently demonstrated if there is a "reasonable probability that the evidence has not been changed in important respects . . . or is in substantially the same condition as when the crime was committed[.]" State v. Brown, 99 N.J. Super. 22, 28 (App. Div.), certif. denied, 51 N.J. 468 (1968) (internal citations omitted). Any "defect in the chain of custody goes to the weight" accorded the evidence, not its admissibility. State v. Morton, 155 N.J. 383, 446 (1998), cert. denied sub nom. Morton v. New Jersey, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). "Whether the requisite chain of possession has been sufficiently established" is a matter entrusted to the sound discretion of the trial judge whose decision will not be overturned unless clearly mistaken. Brown, supra, 99 N.J. Super. at 27. There was no mistaken exercise of discretion in this case.

Lastly, in light of our discussion above, defendant's final point, i.e., that the accumulation of errors requires reversal, is without merit.

Affirmed.


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